### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00065- CV

Juan E nriqu ez, A ppellan t

v. Christina Melton Crain, form er C hair of the Texas Board of Crim inal Ju stice, in her Of fi cial Capacity, etal., Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-0 9-0 0207 9, H ONO RAB LE O RLINDA NARANJO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

J uan Enriquez, an inmate confine d in the I n s t itutional Division of the Texas Depa rtment of Criminal J ustice who is appea ring pro se and in forma pauper is, appea ls the dismiss al of his suit

. Enriquez sued Cristina Melton Crain, in her officia l capa city as former Chair of the Texas Boa

rd of Criminal J ustice; Br ad L ivingston, in his officia l capa city as Ex ecutive Direc tor of the Texas Depa

rtment of Criminal Justi ce; Nathanie l Quar terman, in his offica l capa city as former Direc tor of t he Tex as Department of Criminal J ustice; and J ohn Rupert, i n his official c apac ity as former Warden of the Texas Depa rtment of Criminal J ustice’s Michae l Unit (collec tively “the State officia ls”) alleg ing cause s of action u n d er 4 2 U.S .C. § 1983 and a claim for false imprisonment. Enriquez soug ht a decla

ration that the State offi ci als had violated state law and an injunction requiring them to comply with that law. Enriquez soug ht actua l and exemplary damag es as well as unspecifie d “prospe ctive equitable relief .” The trial court dismiss ed the claims as frivolous pursuantto chapte r 14 of the Texas Civil Practice and Remed i es C o d e. See Tex. Civ. Prac. & Rem. Code

Ann. §§ 14.001-.014 (West 2002 & Supp. 2012)

. Enriquez perf ecte d this a

ppeal. We w ill affirm.

F ACTUAL AND P ROCEDURAL BACK GR OUND On October 19, 1966, Enriquez was convicted in Kar nes County district court of murder with malice and s entenc ed to death. See Ex parte Enriquez , 490 S.W .2d 546, 547 (Tex. Crim. App. 1973) (setting out timeline). On Fe bruar y 14, 1968, the Texas Court of Criminal Appea ls aff

irmed the judgme nt of conviction. Enriquez v. State , 429 S.W .2d 141, 145 (Tex. Crim. App. 1968). I n 1969, Enriquez was a lso convicted of f our counts of murde r and w as sentenc ed to 99 y ear s’ imprisonment for eac h co u n t

. Three of the convictions wer e in Nuec es County district court and one was in Wil son County district court. On J une 29, 1972, the United S tates S upreme Court decla

red the death penalty a void sentenc e and rema nded all death sentenc es to state courts for further consideration. S

ee F u r man v. Georgia , 408 U.S. 238 (1972). I n response to the Furman mandate, the court of criminal appea ls deter mined that the Gover

nor of Texas possessed the power under the Texas Constit ution to commute all death sentenc es. See W han v. State , 485 S.W .2d 275, 276 (Tex. Crim. App. 1972). On Aug ust 31, 1972, Gover nor Preston Smit h commuted Enriquez’s death se ntence to life in prison.

I n May 2006, Enriquez filed a petition for writ o f h ab ea s corpus in fede ral district
court contending that he was b ei n g illega lly confine d bey ond the discharg e of the three Nuec es County 99-y ear sentenc es. See Enriquez v. Quarterman , C.A. No. C-06-207, 2009 WL 1405687, 1

Enriquez’s petition did not rely on the Wils on County

sentenc e. 1 2at *1 (S.D. Tex. May 1 8 , 2 0 0 9 ). Whil e the petition was pending , officia ls with the Texas

Depa rtment of Criminal J ustice signe d cer tificates retroa ctively discharg ing the th r e e N u e c e s Co u

n ty sentenc es as of November 18, 2002. Quar terman then moved to dismiss Enriquez’s habea s petition for lack of jurisdi ct i o n o n the g round that Enriquez was no longe r being confine d pursuant to the three challeng ed sentenc es. Id. The court g rante d the motion to dismiss

. Although t h e 9 9 -y ear sentenc es wer e discharg ed, Enriquez rema ined in c ustody pursuant to the life sentenc e rec eived as the result of the Gover

nor’s commutation of his death sentenc e. Id. at *2 (“[Enriquez] is still serving a life se ntence for his convic tion in cause number 3862 from Ka

rnes County .”). I n Aug ust 2008, Enriquez filed in Kar nes County distr i ct co u rt a document titled “Motion for Nunc Pro Tunc Pronounceme nt of Sentence .” I n his motion, Enriquez asser ted that the Kar nes County court had not sentenc ed him to life in 1972 and reque sted that the court formally “pronounc e the sentenc e g rante d to [hi m] by the Gover nor of Texas.” See Enriquez v. State , No. 04-10-00071- CR, 2011 WL 2637370, at *1 (Tex. App.—San Antonio J uly 6, 2011, pet. ref ’d) (mem. op., not desig nated for publication). The trial court held a hear ing, at the conclusion of which it pron o u n ce d , as an order of the court, that “Juan Rudy Enriquez is here by sentenc ed to life imprisonment in the Texas Depa rtment of Criminal J ustice; t h e I nstitut ional Division as it is

curr ently called. A nd the C ourt here by rema nds J uan Rudy

Enriquez to the custody

of the Sherif

f of Kar nes County to car

ry o ut the terms of this sentenc e.” Id. The district court then signe d a document entitled “Sente nce” in conformity with its oral pronounce ment in open court. Id

. at *2. On appea l, the San Antonio Court of Appea ls vacated the district court’s “Sentenc e,” holding that, afte r a commutation, no additional court action is nece ssary to eff ectua te the commuted punishment.

3Id. at *3. The court co n cl u d ed t hat Enriquez was incorre ct in insisti ng that the Kar nes County district court was require d to formally pronounce a sentenc e following the Gover nor’s commutation of his death se ntence to life imprisonment. Id. at *2.

I n J une 2009, Enrique z filed his original pe tition in the underly ing proce eding . He alleg ed that t h e S t ate officia ls had violated his rig hts to due proce ss and equal protec tion by confining him without the commitment sentenc e require d by law. He further alleg ed that they had

no authority to confine him without a commit ment sentenc e. The State off icials filed a motion to d i s miss the s uit as frivolous pursuant to chapte r 14 of t he civil prac tice and reme dies code. Aft er conducting a non-evide ntiary hear ing on the motion, the court provided Enriquez an opportunity to amend his petition to alleg e a claim t hat had an ar g uable ba sis in law. Enriquez filed an a mended petit i o n i n November 2011. I n Dec ember 2011, the court, afte r a second non-evidentiar y hear ing

on the State officia ls’ motion to dismiss Enriquez’s suit, signe d an order dismiss ing the suit as frivolous pursuant to cha

pter 14. Enr iquez then perfe cted this appe al.

DISCUSSIO N I n his first issue, Enriquez contends that dismiss al of his suit was improper beca use the State officia ls’ motion to dismiss was based on a supplemental petition he had filed in J une 2010, which he contends was supersed ed b y h i s amended petition filed in November 2011. Enriquez arg ues that the trial court err ed by permitting the State officia ls to challeng e his first amende d petition at the Dec ember 2011 hear ing. Specifica lly , Enriquez asser ts that “[t] he court did not have discretion to decide a motion challeng ing a leg ally dead pleading nor to use that motion to discount

or dismiss the live pleading without examination which acc epts the pleade d fac t s as true.” We

4understand Enriquez’s arg ument to be that the trial court has no discretio n t o d i s miss pursuant to

chapte r 14 without a written motion to dismi ss specifica lly direc ted at his live pleading

. Chapter 14 of the civil prac tice and reme dies code applies to any sui t , s u ch as this
one, filed by an i n m ate who decla res himself unable to pay costs. See Civ. Prac. & Rem. Code § 14.002(b). Section 14.003 authorizes a trial court to dismiss an inmate’s claims as frivolous even in the ab s en ce of a motion reque sting it to do so. See id. § 14.003(a) (cour t may dismiss claim, “either befor e or afte r service of proce ss,” if court finds that claim is frivolous); Conely v. Texas Bd. of Crim. Justice , No. 03-10- 0 0 4 2 2 -CV, 2011 WL 3890404, at *4 (Tex. App.—Austin Aug

. 31, 2011,

no pet.) (mem. op.). There fore , even if Enriquez is c orre ct that the State officia ls’ motion was not direc ted to his live pleading , the trial cour t had the author ity

to dismi ss Enriquez’s claims without such a motion, and we revie w t hat di smissal for an abuse of d i s cr et i o n . See Leachman v. Dretke , 261 S.W .3d 297, 303 (Tex. App.—For t Worth 2008, no pet.). We over rule Enr iquez’s first issue. I ssues two throug h five asser t that the trial court abused its discr etion in dismiss ing his suit. As stated above, section 14.003 authorizes a trial court to dismiss an inmate’s claim, filed in forma pauper is, either befor e or afte r service of proce ss occur s, if it finds the claim to be frivolous. See Civ. Prac. & Rem. Code § 14.003(a) (2). A claim is frivolous if it has no basis in law or in fac t. See id. § 14.003(b)( 2). A claim is considere d to have no arg uable basis in law when either the leg al theory on which it is based is indi sputably meritless or the f

actua l alleg ations on which it is based

are wholly incre dible or irrational. Nabelek v. District Att’y of H arris Cnty. , 290 S.W .3d 222, 228 (Tex. App.—Houst on [14t h Dist.] 2005, pet. denied)

. An inmate’s cause of action may not be

5dismiss ed mere ly beca use the court considers the alleg ations “unli k el y .” Minix v. Gonzales , 162 S.W .3d 635, 637 (Tex. App.—Houston [1s t Dist.] 2005, no pet.).

We revie w dismiss al under chapte r 14 for an abuse of discretion. Leachman , 261 S.W .3d at 303. A trial court abuses its discretion if it acts unrea sonably or without ref ere nce to any g uiding rules or principles. Id. We revie w de novo whether the plaintiff’s claims have no basis in law such that dismiss al on that g round is authorized. See Retzlaff v. Texas Dep’ t of Crim. Justice , 94 S.W .3d 650, 653 (Tex. App.—Houston [14t h Dist.] 2002, pet. denied)

. I n conducting our revie w, we take as true the alleg ations in the plaintiff’s petition. Scott v. Gallagher , 209 S.W .3d 262, 266 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We examine the claims asser ted an d the relief reque sted to deter

mine whether the petition stated a cause of action that coul d au t h o ri z e relief

. Hamilton v. W

illiams , 298 S.W .3d 334, 339 (Tex. App.—For t Worth 2009, pet. denied)

. I t has been stated that a pro se inmate’s petition should be viewed with liberality and patience and is g ener ally not he ld to the stringe nt standards applied to pleading s draf ted by attorney s. Minix , 162 S.W .3d at 637 (citing Hughes v . Rowe , 449 U.S. 5, 9-10 (1980))

.

I nformed by this standard of revie w, we consider whether Enriquez’s first amende d petition alleg ed a cause of action that could authorize relief

. Enriquez’s first cause of action, broug ht pursuant to 42 U.S.C. § 1983, alleg es that he was denied his rig ht to due proce ss and equal protec tion and was subjected t o cr u el and unusual punishment beca use he was confine d without the commitment war

rant require d by article s 42.02 and 42.09 of the Texas Code of Criminal Procedur e. See Tex. Code Crim. Proc. Ann. §§ 42.02 (sentenc e is part of judgme nt that order s that punishment be car ried into execution), .09 (def endant shall be delivere d to jail or to instit utional division when

6his sentenc e is pronounce d) (West 2006 & Supp. 2012). We understand these alleg ations to rea ssert

the position Enriquez took in the Kar nes County district court proce eding , in which he insisted that

some further court action was require d afte r the Gover nor commuted his sentenc e. The San Antonio Court of Appea ls has alre ady held, howeve r, that no further cour t action was require d afte r the commutation, and no subsequent pronounce ment of sentenc e was nece ss ar y . See Enriquez , 2011 WL 2637370, at *3. Enriquez further contends in his first cause of action that his due-pr ocess rig hts wer e violated and he was subjected t o crue l and unusual punishment beca use the State officia ls ref

used to discharg e his 99-y ear sentenc es on September 18, 2002, but instead

re t ro ac t ively discharg ed them almost five y ear s later. These sentence s wer e dis char g ed, effec tive September 18, 2002, in J anuar y 2007. Enriquez does not explain how, in the absenc e of a discharg e of his life sentenc e, he has been harme d by the lapse of time betwee n the date his 99-y ear sentenc es

wer e actually discharg ed and the date the di schar g e certifica tes wer e si g ned, nor d o es h i s petition identify any relief to which he is entitled as a result. I n his appellate brief, Enriquez explains that he seeks a decla ratory judgme nt that the State officia ls wrong fully denied him time-serve d cre dit by not rec og nizi ng until J anuar y 2007 that he had discharg ed his 99-y ear sentenc es. But to the extent he is seeking a decla ration that the State

o fficia ls’ past actions wer e inconsistent with g overning statutes, rules, or court order s, g overnme ntal immunit y would bar any such claim. The ultra vires exception to immunit y permits only prospec tive, as opposed to retroa ctive, decla rato ry relief

. City of El Paso v. Heinrich , 284 S.W .3d 366, 374-77 (Te x . 2009). The D ecla ratory J udg ments Act is “intended as a mea ns of deter mining the parties’ ri gh t s wh en a controve rsy has arisen but befor e a wrong has been

7committed, and ‘is preve ntative in nature .’” Etan Indus. Inc. v. Lehmann , 359 S.W .3d 620, 624

(Tex. 2011). Enriquez’s reque st for a decla ration reg arding past actions taken by the State officia ls does not seek any prospec tive decla ratory relief

. His claim for retroa ctive decla ratory relief is there fore barr ed by g overnme ntal immu n i t y . Heinrich , 284 S.W .3d at 374-77. The trial court there fore did not abuse its discretion in concluding that Enri quez’s first cause of action had no arg uable ba sis in law and dismissi ng it as frivolous.

Enriquez’s s econd cause of action alleg es t hat t he S tate o ff i cials vi olated st ate law by acc epting him into custody as a prisoner without a commitment war rant. As set forth above, the San Antonio Court of Appea ls has held that no further cour t action was neede d to eff ectua te Enriquez’s life sentenc e afte r the Gover nor’s commutat i o n of his death sentenc e. Moreove r, the relief Enriquez reque sts—prospective injunctive relief to compel the State officia ls to comply with the law—is not available

. See Hailey v. Glaser , No. 06-12-00065- CV, 2012 WL 5872869, at *3 (Tex. App.—Texarkana Nov. 21, 2012, no pet.) (mem. op.) (g ener al injunction seeking “complianc e with the law” too indefinite to be g rante d). The trial court did not abuse its discretion by concluding that this cause of

action had no a

rg uable ba sis in law and dismissi ng it as frivolous. Enriqu ez ’s t h i rd cause of action alleg es a claim for false imprisonment. First, he contends that the State officia ls detained him by confining him in prison bey ond the date his 99-y ear sentenc es wer e discharg ed. But, as the fede ral district court noted in Enriquez v. Quarterman , even afte r discharg e of the 99-y ear s en tence s, Enriquez continued to be lawfully confine d pursuant to the life sentenc e for his murder conviction in the Kar nes County distr i ct co u rt

. Quarterman , 2009 WL 1405687, at *2. Be cause Enriquez was subject to confine ment ev en af t er h is 99-y ear

8sentenc es wer e dischar ged , detaining him past the discharg e date did not constitute false

imprisonment. Enriquez also alleg es t hat t he S tate officials’ failure to comply with article s 42.02 and 42.09 of the co d e o f cr i minal proce dure, i.e., confining him without a sentenc e having been pronounce d, cause d his detention to constitute false imprisonment. Ag ain, no further trial court action was nece ssary afte r the Gover nor commuted Enriquez’s death sentenc e. There fore , the trial
court did not abuse its discretion b y concluding that Enriquez’s false- imprisonment claim had no arg uable ba sis in law and dismissi ng it as frivolous.

Having conclude d that the trial court did not abuse its discretion by dismiss ing eac h of Enrique z’s causes of

action, we overr

ule his second, third, four th, and fifth appe llate issues. I n his six th issue, Enriquez asser ts that t h e t ri al co u rt had a mandatory duty to file proper ly reque sted finding s of fa ct and c onclusions of law but failed to do so. In the pre sent ca se, howeve r, t h e trial court dismiss ed Enriquez’s claims without an evidentiar y hear ing beca

use they lacke d any arg uable basis in law. See Sawyer v. Texas Dep’ t of Crim. Justice , 983 S.W .2d 310, 311 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (dismissal without holding fac t hear ing can only b e b as ed on lack of arg uable basis in law). I n such a situation the trial court is not acting as a fac tfinder; conse quently , the fa ilure t o file findings of fa ct is not error

. See R etzlaff , 94 S.W .3d at 655 (citing Timmons v. Luce , 840 S.W .2d 582, 586 (Tex. App.—Ty ler 1992, no wr it) (holding no d u t y to file finding s afte r dismiss al of inmate suit under civil prac tice and reme dies co d e chapte r 13)). Acc ording ly , the trial cour t was not requir ed to file finding s of fact and conclusions of law, and its failure to do so was not err or. See id. We overr ule Enriquez’s six th appellate issue.

9CONCLUSION Having overr

uled Enriquez’s six appellate issues, we aff irm the t ri al court’s dismiss al orde r.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: May

7, 2013

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